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[2019] ZALCCT 21
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Transnet Freight Rail v Fransenburg and Others (C848/17) [2019] ZALCCT 21 (2 August 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no: C848/17
In
the matter between:
TRANSNET
FREIGHT
RAIL Applicant
And
NEIL
FRANSENBURG
First
Respondent
URSULA
BULBRING
N.O.
Second Respondent
TRANSNET
BARGAINING COUNCIL Third
Respondent
Date
heard: 13 June 2019
Delivered:
2 August 2019
JUDGMENT
RABKIN-NAICKER, J
[1]
The First Respondent (Transnet) filed a notice in terms of Rule 30(2)
and Rule 30A of the Uniform Rules
of Court. Its Notice dated the 23
March 2018 stated that it considers the delivery of the Applicant’s
supplementary affidavit
in the review application of a jurisdictional
ruling under this case number, to be an irregular step.
[2]
The grounds contained in the Notice are that the applicant failed to
file the record of the arbitration
proceedings as contemplated in
Rule 7A(6) of the Labour Court Rules and the supplementary affidavit
is premature and constitutes
an irregular step. Furthermore, that he
has not followed the procedure in terms of Clause 11.2.4 of the
Practice Manual i.e.:
“
If
the record of the proceedings under review has been lost, or if the
recording of the proceedings is of such poor quality that
the tapes
are inaudible, the applicant may approach the Judge President for a
direction on the further conduct of the review application.
The Judge
President will allocate the file to a judge for a direction, which
may include the remission of the matter to the person
or body whose
award or ruling is under review, or where practicable, a direction
that the relevant parts of the record be reconstructed.”
[3]
Transnet gave the applicant 10 days to remedy the complaint failing
which it would approach this Court
to have the supplementary
affidavit withdrawn. It lodged such an application on the 3 May 2018.
The applicant did not comply with
the Notice and erroneously filed
what he titled a ‘replying affidavit’ to the Notice on 28
March 2018. It should be
said that he is a lay person and has not
sought legal assistance
[4]
In argument before me, the applicant pointed out that the Second
Respondent had stated in her affidavit
in response to the review,
that she has no record of the proceedings and averred that:
“
I
have been requested to provide a recording of the proceedings in this
dispute. I no longer have the recordings of the proceedings
in my
possession. This is because almost two years have passed since the
hearing of this matter. Also no evidence was led at the
hearing. The
common cause facts were presented and argued as appears from the
ruling.”
[5]
The applicant handed up a written note at the hearing that had been
written by the registrar
[1]
,
unfortunately undated, to the late Judge Steenkamp, in which she
wrote the following: “Judge this matter in the arguments,
they
are saying there is no record, so I am not sure what to do, does it
get remitted to the bargaining council.” The only
arguments in
the file which relate to this application are dated the 21 May 2019
and the 11 June 2019. The directives that were
sent out by Judge
Steenkamp to both parties are dated the 27 June and 19 October 2018.
The directive states that the applicant
must comply with Rule7(A) 6
and Rule 7A (8) i.e.
“
(6)
The applicant must furnish the registrar and each of the other
parties with a copy of the record or portion of the record, as
the
case may be, and a copy of the reasons filed by the person or body……
(8) The applicant must
within 10 days after the registrar has made the record available
either-
(a)
by delivery of a notice and accompanying affidavit, amend, add to or
vary
the terms of the notice of motion and supplement the supporting
affidavit; or
(b)
deliver a notice that the applicant stands by its notice of motion.”
[6]
It is not possible to know whether the Registrar’s undated note
was brought to Judge Steenkamp’s
attention, or if so, when. As
I have recorded in footnote 1 to this judgment, the applicant also
removed this note from the Court
file at some stage which he should
not have done. Had the note been properly brought to the attention of
a Judge for direction,
the parties would have been instructed to meet
and attempt to reconstruct the record of the arbitration.
[7]
In all the circumstances, it is clear that as a matter of fact and
law, the filing of the supplementary
affidavit was an irregular
step
[2]
. What guides me in
making an order in this matter is the principle of the speedy
resolution of labour disputes. The parties need
to meet and attempt
to reconstruct the record by putting together the documents (if any)
used at the arbitration and seeking to
find agreement as to whether
paragraphs 3 to 5 of the Award do constitute the common cause facts
before the second respondent.
They should report back to this Court
whereupon a Directive will be given on the future conduct of the
review.
[8]
The first respondent argued that costs should follow the result in
this application. However, taking
into consideration that the
applicant is a lay person and that the Registrar’s note
regarding the lack of a record does not
appear to have been
considered by a Judge, I decline to order costs in this matter.
[9]
In all the circumstances, I make the following order:
Order
1.
The supplementary affidavit dated the 21
February 2018 is deemed withdrawn;
2.
The parties are to meet to attempt to
reconstruct the record to the best of their abilities including in
the way directed in Paragraph
6 of this judgment;
3.
The parties are to report to this Court
within 15 Court days of this order as to their progress, whereupon a
Directive will be issued
by a Judge on the further conduct of the
review.
_________________
H. Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
In person
First
Respondent: Mandlakazi Ngumbela instructed by Dentons
[1]
The
applicant had removed this from the Court file. The Registrar
confirms this is her handwriting.
[2]
Helen
Suzman Foundation v Judicial Service Commission
2018 (4) SA 1
(CC) at paras 79-80